On June 18, 2008, the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials viewed text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

In late 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. The pagers’ wireless text-messaging service provider, Arch Wireless, had stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon paid the overage fee several times without further inquiry into the content of the messages until August 2002, when the Ontario police Chief Scharf moved to obtain transcripts of Quon’s text messages from a support specialist at Arch Wireless.

At least three department employees, including Quon’s immediate supervisor, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Quon and several recipients of the messages brought suit in the District Court of Central California. They appealed the district court’s holding, arguing that Arch Wireless had violated the SCA. Quon also argued that the city violated his Fourth Amendment right to be free from unreasonable search and seizure, as well as his rights under the California Constitution.

Fourth Amendment Violation

The Fourth Amendment protects individuals and entities from unreasonable searches. The Supreme Court has previously held that the Fourth Amendment extends to public employees, although their reasonable expectation of privacy could be curtailed by official or unofficial workplace practices.

Judge Wardlaw, writing for the Ninth Circuit, stated that the reasonable expectation of privacy for text message users is very fact-specific. He noted that the official in charge of the pagers had an informal policy that the messages would not be audited if the employee paid the overage charges. Based on Quon’s prior experiences paying for overage charges, the court found that Quon had a reasonable expectation of privacy in his text messages. The Court also found that the California Public Records Act (“CPRA”), which provides that public records are open to inspection at all times, did not diminish an employee’s reasonable expectation of privacy.

Judge Wardlaw acknowledged the finding of the jury in the lower court that that the search was reasonable “at its inception” because it had a legitimate work related purpose — to ensure that officers were not being required to pay for work-related expenses. However, the Ninth Circuit found that the scope of the search was unreasonable because there were less invasive ways to verify the efficacy of the 25,000 character limit without violating Quon’s Fourth Amendment right to privacy, including warning Quon of its intent to review the content of future messages or asking Quon to redact personal messages before reviewing the transcripts.

Judge Wardlaw limited discussion of the right to privacy to the Fourth Amendment, noting that the California Constitution offers no broader privacy protection.

The Stored Communications Act

The SCA prevents providers of communication services from disclosing private communications. Under the SCA, an “electronic communication service” (“ECS”) is allowed to divulge the contents of a communication only to the sender and recipient, while a “remote computing service” (“RCS”) is also allowed to release it to a “subscriber.” An ECS is a service which provides its users with the ability to send or receive wire or electronics communications, and an RCS is a computer storage or processing service provided to the public by means of an electronic communications system. Judge Wardlaw held that Arch Wireless’ service was properly categorized as an ECS because it enabled users to send and receive messages. The Court noted that the temporary storage incidental to the communication was insufficient to make the service an RCS.

Full Text of the Secured Communications Act of 1986 at the US Government Printing Office.

Orin Kerr of the Volokh Conspiracy approves of the holding and considers it broad enough to extend to emails as well as text messages.

An article in E-Commerce Times provides statements on the case from practitioners, with Charles Baker noting that this is the first case in which the Fourth Amendment has been applied to electronic communications in a work setting. Barry Werbin believes that this will set off a series of similar suits, while Evans C. Anyanwu expresses his view that the decision is a “warning to employers to not say one thing and then do another.” He suggests that Appellees could avoid this problem in the future by appending a statement to the city’s contract declaring it an “addressee” of all messages.